Richard Levick, Esq., is Chairman and CEO of LEVICK, which provides strategic communications counsel on the highest-profile public affairs and business matters globally. Mr. Levick has been named four times as one of “The 100 Most Influential People in the Boardroom.” He is the co-author of four books and a regular commentator on television and LEVICKDaily.com.
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Campaign Finance: For Shaun McCutcheon, It's About Passion For Freedom, Not Power

On April 2, 2014, the Supreme Court, in a decision written by Chief Justice John Roberts, overturned the section of federal election law setting “aggregate limits” on contributions. The case, McCutcheon v. FEC, was brought by Alabama engineer and businessman Shaun McCutcheon, who believes that such limits are unconstitutional as they violate First Amendment rights.

Importantly, the case does not challenge specific limits on contributions to candidates, parties, or PACs. Instead, it simply says that you can give allowable contributions to as many politicians as you’d like. It seems commonsensical enough, yet there were virulent (and often ad hominem) rumbles from the left. The 5-4 SCOTUS decision does, at least, suggest that ideological party lines were indeed tightly drawn, predictably so.

Four points drove Roberts’ decision. First, First Amendment protection can be accompanied by only limited regulation of campaign contributions. Second, only a quid pro quo (i.e., bribe), rather than “general influence,” can be targeted by Congress for regulation. Third, aggregate contribution limits are essentially irrelevant as a way to prevent corruption. Fourth, disclosure of contributions does still reduce the potential for abuse.

The Court gave back-of-the-hand treatment to scenarios in which joint fundraising committees may now, as a result of this deregulation, ostensibly conspire to earmark millions to single candidates. Capital University Law School professor and former FEC chairman Bradley Smith, who advised the McCutcheon team, says these “wild hypotheticals” are “unbound from common campaign practice or common sense.”

During this publicly enflamed discussion, my firm represented Shaun McCutcheon on the communications front. On the one hand, that’s the kind of full disclosure we make whenever we have a business relationship with a party cited in this column. On the other hand, it’s not my purpose here to argue McCutcheon’s position. Instead, I want to share an insight into this whole campaign finance debate that, for me, was powerfully underscored as a result of our relationship.

Mr. McCutcheon is not a corporation. He is not an oligarch. He is a successful engineer but his pockets aren’t deep enough to awaken anything like the ghosts of Citizens United v. FEC. His relatively limited power naturally raises the question of motive. In fact, McCutcheon pursued this case at significant expense to himself. It was in many ways a personal ordeal that began three years ago when he agreed to put his name and reputation on the line in support of this incipient litigation. So when McCutcheon says he was driven by principle, by the sacred First Amendment covenant that he believes at risk here, he can and should be believed regardless of whether or not you agree with his specific interpretations of the Constitution.

As such, there’s a lesson here for everyone: The campaign finance debate is not necessarily about money or power. At least entertain the very real possibility that many of the strongest proponents of responsible deregulation are disinterested participants in a fundamental and continuing discussion, and that they are no less committed to their notion of democracy than those who believe that money, by definition, always corrupts.

There are ancillary lessons as well. Less regulated campaign financing is typically stereotyped as a give-away to entrenched corporate power. In fact, principled advocates of rational deregulation passionately believe the very opposite.

“Election law has been geared to the status quo, favoring incumbents who have years in office during which to plan ahead – to work around the regulations and devise sweetheart deals with special interests, so that they’re sitting pretty come election season,” says McCutcheon. “If you want fresh ideas in Washington, those with fresh voices must have equal access to financing, which is impossible under the Byzantine restrictions that have effectively stifled public debate.”

For McCutcheon, the very fact that a private citizen was able to mount this successful campaign, all the way to the Supreme Court, testifies to the essentially democratic grassroots character of his cause. “We struck a chord because people want to contribute to underdog candidates,” says McCutcheon. “At some level, people know that what we’ve accomplished ultimately disfavors the Super PACs and the hidden power of special interests. At some level, they’re also wondering why so unpopular a Congress enjoys such remarkable reelection rates.”

McCutcheon v. FEC no more ends the debate on campaign financing than did Citizens United. To the contrary, the reaction from oppositional quarters suggests that the issue will be revisited in whatever form and venue are practicable. And, as McCutcheon himself is acutely aware, only one vote separated victory from defeat. Obviously, the make-up of the Supreme Court can and will change in one direction or another.

It is now my fanciful hope that the inevitable continuing debate may in some measure be less bitter than in the past. If nothing else, perhaps this chapter of the campaign finance saga will serve as a reminder that real human beings, with real reverence for democracy, are battling on both sides.

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